IN THE CASE OF:	 

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140014589 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his record to show his disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  Additionally, he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), item 28 (Narrative Reason for Separation) to show that he was separated due to "disability severance pay (war zone)" vice disability severance pay.

2.  The applicant states:

* His DD Form 214, item 28, reads "Disability Severance Pay" when it should read "Disability Severance Pay - War Zone"
* his disability was incurred during the performance of duty in combat-related operations based on Department of Defense (DOD) guidance
* his disability severance pay should indicate that he was in a war zone since his injury was incurred during Operation Iraqi Freedom (OIF) in 2003 while he was in Kuwait and Iraq in a designated imminent danger pay area

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) 3 May 1995 and was honorably released from active duty service on 27 January 2000 due to hardship.  
2.  On 8 October 2002, he again enlisted in the RA.  In 2003, he served in Kuwait/Iraq in support of OIF for 7 months.  Shortly thereafter, he returned from deployment and was processed for separation due to a disability.  He received severance pay in the amount of $27,409.20 and was honorably discharged on
10 April 2005.

3.  However, on 12 January 2008, the applicant received a medical waiver and on 29 January 2008, he again enlisted in the RA in military occupational specialty 42A (Human Resource Specialist).  

4.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
27 July 2009, states the applicant reported an onset of [back] pain after a tank accident in 2003, but the PEB was unable to support his claim through his health record.  The informal PEB found him medically unfit to perform the duties required of a Soldier of his rank and primary specialty.  These PEB proceedings state in: 

	a.  Item 10a the Soldier's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law.

	b.  Item 10c the disability did not result from a combat related injury as defined in 26 U.S.C., 104 (Title 26, U.S. Code (USC), section 104).

   c.  Item 10d the disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense, NDAA 2008, Sec 1646 (National Defense Authorization Act 2008, section 1646).  

5.  On 27 July 2009, the applicant concurred with the findings of the informal PEB and waived a formal hearing.  Therefore, he was honorably discharged on 
17 August 2009 due to disability - severance pay, non-combat related.  He was authorized disability severance pay in pay grade E-5 in the amount of $11,244.00.

6.  The Fiscal Year 2008 NDAA, which became Public Law (PL) 110-181, on 28 January 2008, authorized an enhancement of disability severance pay for members of the Armed Forces.  The law mandated that the Secretaries of Military Departments identify and certify members with a disability incurred in the line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  The determination of "incurred during performance of duty in combat-related operations" shall be made consistent with the criteria of the law.  This provision applies to members not disability-separated or retired as of 28 January 2008.

7.  Title 10, USC, section 1212(a)(1), states that upon separation from an Armed Force under section 1203 or 1206 of this title, a member is entitled to disability severance pay computed by multiplying the member's years of service computed under section 1208 of this title (subject to the minimum and maximum years of service provided for in subsection (c)) and twice the amount of monthly basic pay (based on his status at the time).

8.  Title 10, USC, section 1212(c)(1), states the minimum years of service of a member for purposes of subsection (a)(1) shall be:

	a.  6 years in the case of a member separated from the Armed Forces for a disability incurred in the line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense; or

	b.  3 years in the case of any other member.

9.  DOD Instructions (DODI) 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures under DOD Directive 1332.18 (Separation or Retirement for Physical Disability) and Title 10, USC.

	a.  Paragraph E3.P5.1.2 (Armed Conflict) states that physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that a member may have incurred a disability during a period of war or in an area of armed conflict or while participating in combat operations is not sufficient to support this finding.  There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.

	b.  Paragraph E3.P5.1.2.1 states that armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which service members are engaged with a hostile or belligerent nation, faction, force, or terrorists.

	c.  Paragraph E3.P5.2.2 states a physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under the following circumstances:

		(1)  as a direct result of armed conflict.  The criteria are the same as in paragraph E3.P5.1.2,

		(2)  while engaged in hazardous service;

		(3)  under conditions simulating war; or

		(4)  caused by an instrumentality of war.

10.  The Directive-Type Memorandum (DTM) from the Under Secretary of Defense, dated 13 March 2008, revises and supplements DODI 1332.38.

	a.  A new paragraph 5.5.8 directed the Secretaries of the Military Departments to identify and certify members with a disability incurred in the line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.

	b.  Paragraph 5.5.8.1 states the determination of "incurred during performance of duty in combat-related operations" shall be made consistent with criteria set for paragraph E3.P5.1.2 of DODI 1332.38.

	c.  The DTM specifically states there is no change to paragraph E3.P5.1.2.

DISCUSSION AND CONCLUSIONS:

1.  A member's disability severance pay is computed using 6 years of minimum active service if the disability was incurred in the line of duty in a combat zone (as designated by the Secretary of Defense) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.

2.  The DTM, dated 13 March 2008, clearly states that only combat zones and armed conflict in paragraph E3.P5.1.2 of DODI 1332.38 are the definitions to be used for entitlement to enhanced severance pay.  The DTM specifically states there is no change to paragraph E3.P5.1.2 of DODI 1332.38.

3.  The PEB states his back pain began in 2003 due to a tank accident while serving during OIF in Kuwait and Iraq.  However, the PEB could not locate any supporting documentation to support the applicant's claim that his injury was due to a tank accident during OIF.  His disability did not meet the criteria for having been incurred due to armed conflict.  Therefore, he is not entitled to enhanced severance pay based on a minimum of 6 years of active service.

4.  Therefore, in view of the above, the entry in item 28 of his DD Form 214 is correct.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   x_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110003439



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ABCMR Record of Proceedings (cont)                                         AR20140014589



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